SURVEILLANCE

MONTANA SUPREME COURT DECISIONS

Montana State Fund v. Simms [02/01/12] 2012 MT 22 Where Respondent was videotaped in public locations where he made no attempt to conceal his identity or “act so as to assert a privacy interest in his actions,” the court found that Respondent did not have subjective or actual expectations of privacy.  The Court further found the merits of disclosure to be substantial as the proper operation of the workers’ compensation system is a substantial societal interest and the video at issue may bear on a determination of whether Respondent “engaged in misbehavior concerning his industrial accident.”
WORKERS' COMPENSATION COURT DECISIONS

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 Historically, this Court has found surveillance to be of limited use in making credibility determinations.  It is not always apparent if the activity actually exceeds the claimant’s purported limitations, nor does it show the aftermath, when a claimant may suffer for exceeding his limitations.  However, in this instance, the Court could not reconcile the wide disparity between what Petitioner reported to his doctors and testified to, and the activities which were captured on the surveillance videos, which demonstrated that Petitioner was dishonest in his testimony.
Montana State Fund v. Simms [12/29/10] 2010 MTWCC 41 Surveillance conducted by the Special Investigative Unit of the State Fund Fraud Group, even if it may have begun as “ordinary claims adjustment,” clearly became information compiled by a criminal justice agency in the course of conducting an investigation of a crime or crimes and thereby became subject to the terms of the Criminal Justice Information Act.
Winfield v. State Fund [7/20/99] 1999 MTWCC 41 Insurer presented video tapes showing claimant vacuuming a car, working on a truck, squatting to fill a gas can, walking on a hunting trip, and involved in some fashion in various outdoor activities. Doctors who viewed videos agreed claimant could do more than he had portrayed in office visits, but continued their assessment of restrictions. Court credited claimant's pain reports and found him PTD, noting that inability to work on a regular, sustained basis is not the equivalent to inability to engage in any sort of activity.
P. Davis v. Credit General Ins. Co. [8/9/00] 2000 MTWCC 48 Among the reasons WCC found claimant's reports of disabling pain not credible were his gardening activities depicted on surveillance videotape and his denial of engaging in activities demonstrated on tape.
Patrick v. State Fund [4/4/00] 2000 MTWCC 20 Penalty and attorneys Fees awarded where insurer unreasonably limited rehabilitation evaluation to the gathering of information to support the insurer's prior conclusion claimant suffered no wage loss. Facts suggesting unreasonable delay and denial of rehab benefits included adjuster's hiring of private investigator to conduct surveillance based only a computer generated "fraud flag," which in turn was based only on claimant's failure to return to work within a predicted period of time, and did not consider claimant's serious preexisting injury, which impacted recovery time from work injury. (After decision, the parties settled and presented a Stipulated Judgment to the Court, which then issued its Order Nunc Pro Tunc For Entry of Judgement and Dismissal with Prejudice, Tim Patrick v. State Fund,2000 MTWCC 20A.)
Fitch v. Liberty Mutual Fire Ins. Co. [12/17/98] 1998 MTWCC 90 Employer's motion to dismiss on ground that claimant was not an employee and faked her fall denied where not supported by "appropriate supporting documents and affidavits" as required by ARM 24.5.316(3).
Fitch v. Liberty Mutual Fire Ins. Co. [12/30/97] 1997 MTWCC 70A-2 Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.
DesJardins v. Liberty Northwest Ins. [9/12/97] 1997 MTWCC 50 A 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video did not contradict or impeach claimant's testimony concerning his activities, but showed him to move slowly, stiffly, and gingerly.
Yarde v. Liberty Northwest [9/7/95] 1995 MTWCC 69 Videotaped surveillance was ineffectual and useless where video was of poor quality, with claimant barely visible, and merely showed her, on a single day, getting in and out of a car after classes, and arriving at and sitting at a laundromat. The short action sequences did not show activities inconsistent with claimant’s pain complaints. The tape should have remained in the insurer’s files and not have been presented in Court.